A ‘legitimate interest’ in GDPR

No doubt you’ve poured over the detail contained within the 261 pages that make up the official text for GDPR in the vain hope that you’ll fully understand the implications for your business when this new legislation comes into force on 25th May 2018.

Nick Gill - Head of New Business & Client Services

Nick Gill29.08.2017

What? You haven’t! Well, I’ll save you some trouble…despite its length and the near 100 supporting articles included, it still doesn’t tell B2B marketers exactly what we’ll need to do to be compliant the day after the law comes into force.

Not ideal that really.

GDPR has its origins in B2C but leaves those of us working within the B2B sector in some doubt as to exactly how much will apply to us once the dust settles in relation to the precise definition of ‘personal’ data.

Those that have read the weighty tome will have seen the glaring omissions and contradictions within the text regarding GDPR’s affect on the B2B sector.

Yet this lack of clarity doesn’t appear to have prevented a whole new industry of B2B focused GDPR training courses springing up…!

However the fundamental question remains ahead of May 2018:

“Will business email addresses be categorised as the ‘personal data’ referred to within GDPR or will they remain exempt?”

Where are we now?

Well, in summary there are two competing schools of thought regarding the exemptions for B2B marketing.

One group of lawyers believe that because the text only mentions ‘natural persons’, then the exemption remains because there isn’t a reference to ‘legal persons’. Others believe that B2B data is still personal data and therefore covered by the phrase ‘natural person’. If the latter, then this would mean that B2B marketing would require an opt-in going forward.

I subscribe to the former view - a ‘personal’ email address is surely just one’s own (@yahoo.co.uk, @gmail.com, etc) while a work address is only ‘personal’ figuratively.

As one of our trusted data partners said to me only the other day – “Your office is not really your office, neither is your desk or your personal parking space (not that I have one!) – it is company property making a business email address also company property. After all, you don’t retain it when you leave the business”.

There appears to be a growing confidence that B2B email marketing will be spared the worst excesses of the new legislation by being considered ‘legitimate interest’ i.e. relevant trade-related communications to specific and relevant trade-related prospects.

However until a tighter definition of what constitutes ‘legitimate interest’ is also established, it’s very difficult to move forward with any certainty.

In the meantime what you can do is ask yourself whether you have the basics covered – an ability to demonstrate (if challenged) strong, robust processes behind all data collection and a clear demonstrable commitment to data security.

*Please note this blog post does not in any way constitute legal advice and you should seek your own legal counsel relative to your own business and specific circumstances.

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